The Quest for an Airsoft Field

[Trev140_0]

Originally Posted by Brian McIlmoyle

Liability.. so this is how it could pay out.. you invite some friends over to play on crown land,

one of your friends brings a friend with him.. and said friend gets turned around while int he bush and wanders off.. and Dies.

his family is looking for someone to blame.. and they pick you, because if not for your invitation he would not have been there.

the sue you for their loss, maybe the court does not find in their favour, but you spend $20 000.00 in legal expenses to find out you owe nothing.

maybe you can sue for costs, but that is more legal bills..

If you are insured, the insurance company defends the suit..

If you have a home insurance policy the personal general liability may respond, but if there is any hint of a commercial venture here ( anyone is paying to play) they will step away, and leave you twisting.

just because you "say" you are not organizing the game and are not the "host" does not mean that you may be shown to be liable in a civil suit, the test is low, well below reasonable doubt, on the balance of the evidence is a low threshold to meet to prove liability.

This is interesting stuff for sure. I often wonder how some venues turn a blind eye to a bunch of guys sparking up a doob right before the game.

After all, as you know, insurance companies do not make money by paying out, and the very first thing they look for is how you failed to adhere to what policy you bought. They look for negligence.

Say buddy got baked, then wandered off in the woods, etc. And you the host new this was happening but looked the other way. Now THAT, would be an issue.

Sort of like finding out how good your car insurance is-after you got corked and bowled over 5 people.

My advise is make a VERY clear waiver. Reviewed by a lawyer for ACCURACY, NOT ADVISE.

The top portion needs to be much larger font then the rest of the waiver. It must be clear that by signing the document you understand and agree you and your associates are totally waiving all right to sue.

Also, do not rent guns.

[Hectic]

So say if you get cleared to play on crown land by the local LE and such (note not local cops but the local OPP as crown land is their turff)
Wouldnt it he a good idea to also have waivers something to tbe effect of " i take responsability for my own safety and obsolve all others in attendance
at 「whatever place on whatever date」 including but not limited too personal injury or death.
May as well be blunt about it and have everyone take responsability for them selve cause lets face it some folks (hopefully verry few) may not realize that running around in the woods in the middle of nowhere could potentially be dangerous.
(i recall a story of someone tryin to sue a property owner over lost time at work do to a broken arm or leg after falling over a log or tripping in a gopher hole or some dumb crap like that. Like cmon folks we all (should) know the potential dangers of playin soldier on the weekend.)

[Trev140_0]

There has been a severe change in the ruling of waivers. I am not going to go into detail as I don't want to start the "BUT, BUT, BUT"

All I can tell you is when you sign a waiver now, its binding. Even on impulse decisions such as waking up in the morning and deciding to go bungee jumping. No thought or plan. Spur of the moment vs methodically seeking out a sport. Like Mountain biking, baseball, airsoft, paintball, soccer, Thursday night hockey, running club etc etc etc. All are organized events and all have risk.

I recall when I played Rugby in Toronto we would have over 120 people at the 6 fields all playing ready to kill each other. We signed one waiver at the beginning of the year for whole season. Injuries at the field were reminded with the Ambulance waiting in the parking lot.


He needs to make sure he is responsible in his hosting and not allowing anything that can be construed as gross negligence.

Do you home work and get your facts straight then contact the police. They are there to help and appreciate the call BEFORE "the call".

[Danke]

Originally Posted by Brian McIlmoyle

Liability.. so this is how it could pay out.. you invite some friends over to play on crown land,

one of your friends brings a friend with him.. and said friend gets turned around while int he bush and wanders off.. and Dies.

his family is looking for someone to blame.. and they pick you, because if not for your invitation he would not have been there.

the sue you for their loss, maybe the court does not find in their favour, but you spend $20 000.00 in legal expenses to find out you owe nothing.

maybe you can sue for costs, but that is more legal bills..

If you are insured, the insurance company defends the suit..

If you have a home insurance policy the personal general liability may respond, but if there is any hint of a commercial venture here ( anyone is paying to play) they will step away, and leave you twisting.

just because you "say" you are not organizing the game and are not the "host" does not mean that you may be shown to be liable in a civil suit, the test is low, well below reasonable doubt, on the balance of the evidence is a low threshold to meet to prove liability.

Someone could pick you out of the group to sue because most of the players are penniless students and you have a home. Can't get blood from a stone as they say so go after someone who they can get something from.

[Trev140_0]

Tested in Supreme Court over a year ago.

In considering the unconscionability of the waiver, the Court first examined the status of the common law on the enforcement of waivers. This examination revealed that there is a well-established line of authority that releases in relation to recreational sports are not unconscionable, even when, as in this case, the activity is totally within the control of the service-provider. Further, the Court found that the principle demonstrated by these cases is “that it is not unconscionable for the operator of a recreational-sports facility to require a person who wishes to engage in activities to sign a release that bars all claims for negligence against the operator and its employees. If a person does not want to participate on that basis, then he or she is free not to engage in the activity.”[4]

The Court next considered whether there was an overriding public policy reason to not enforce the waiver. The plaintiff argued that it was against public policy to enforce a waiver that allowed service-providers to escape liability for injury and death resulting from negligence in sporting and recreational activities. The Court reviewed the Supreme Court of Canada’s decision in Tercon Contractors Ltd. v British Columbia (Transportation and Highways),[5] stating that the power to decline enforcement of a waiver must be rarely exercised in the interest of stability of contractual relations. The Court determined that in order to decline to enforce a waiver on the grounds of public policy, the party relying on the waiver must have “engaged in conduct so reprehensible that it would be contrary to the public interest to allow it to avoid liability”.[6] As these conditions were not present in this situation, the Court found that the waiver was not unenforceable on the grounds of public interest.

The Court then disposed of the ground of appeal relating to unconscionability under the BPCPA, finding that the elements to establish unconscionability were the same as under the common law discussed above. As such, the waiver was not unconscionable under the BPCPA, and that the defendant had met the reverse onus in this regard. Finally, the Court considered the claim that the waiver was unenforceable for lack of consideration. The plaintiffs argued that they entered the contract to go on a zip-line tour at a different time than when they signed the waivers. They claimed therefore that when the signed the waiver, which is a contract, no consideration changed hands so the contract was not legally formed. The Court determined however that the consideration that the plaintiffs received was the ability to participate in the zip-line tour, which they did in fact do, albeit with unfortunate results.
E. CONCLUSION

This decision is important to charities and not-for-profits for two reasons. Firstly, it further increases the likelihood that a properly drafted and executed liability waiver will insulate service-providers from liability.
Secondly, this decision illustrates the importance of ensuring that a liability waiver is properly drafted and executed. The liability waiver was found to be enforceable by the trial judge and the Court of Appeal because it was clear, drew attention to the impact of the waiver in terms of liability of the service-provider, and gave the plaintiffs the opportunity to read and understand its terms. It is also noteworthy that the Court considered the plaintiffs’ capacity to understand the waiver. Where these conditions are not present, a liability waiver will be less likely to be legally enforceable if challenged.

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The part on the end is important if the guy sparks up a joint, you see him, you don't care, and he signs. His "capacity" is impaired.